Notice & Comment

Chevron Is Not Inconsistent with the APA, by Cass R. Sunstein

Section 706 of the APA states that “court[s] shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Is Chevron v. NRDC, 467 U.S. 836 (1984), inconsistent with the text of the Administrative Procedure Act, as originally understood?

I used to think so. In fact I was pretty sure of it. But I was quite wrong.

In the early drafts of a recent article,[1] I explicitly argued that the APA clearly contemplated independent judicial judgments about the meaning of statutory enactments. Because Chevron calls for deference to (reasonable) agency interpretations of ambiguous provisions, it is inconsistent with the APA. But in reaching that conclusion, I had not read the source materials from the relevant decades. I decided to do that, and what I learned changed my mind. The idea of judicial deference to reasonable agency interpretations of law is not inconsistent with the original meaning of the APA. Here is why.

First: The idea that courts “shall decide all relevant questions of law” does not dispose of the question whether courts should defer to agency interpretations of ambiguous provisions. The right answer to the relevant question of law—the answer that courts should offer—might depend on the agency’s view. Those who find clarity in the command that courts “shall decide all relevant questions of law” disregard the possibility, vindicated by the historical context (see below), that the command can be understood in multiple ways.

Section 706 has something in common with the duck–rabbit illusion, a famous drawing that from a certain point of view looks like a duck, and from another like a rabbit. For some readers, the text plainly contemplates independent review. After all, courts are instructed to decide “all relevant questions of law.” What on earth could be clearer? It’s a duck!

But from another point of view, the text is hopelessly uninformative, because courts might decide that the right answer to the relevant question of law depends on the agency’s interpretation. It’s a rabbit! By itself, the text does not resolve the question. To know whether we have a duck or rabbit, we need to investigate the context. If we care about the original public meaning of the text, that is what we have to do. It’s not enough to stare at the text and find a duck.

Second: Relevant materials, preceding enactment of the APA, explicitly endorse judicial deference to agency interpretations of law. In 1941, a report of a Committee created by Franklin Delano Roosevelt said the following[2]:

Even on questions of law [independent judicial] judgment seems not to be compelled. The question of statutory interpretation might be approached by the court de novo and given the answer which the court thinks to be the “right interpretation.” Or the court might approach it, somewhat as a question of fact, to ascertain, not the “right interpretation,” but only whether the administrative interpretation has substantial support. Certain standards of interpretation guide in that direction. Thus, where the statute is reasonably susceptible of more than one interpretation, the court may accept that of the administrative body. Again, the administrative interpretation is to be given weight—not merely as the opinion of some men or even of a lower tribunal, but as the opinion of the body especially familiar with the problems dealt with by the statute and burdened with the duty of enforcing it. This may be particularly significant when the legislation deals with complex matters calling for expert knowledge and judgment.

This passage should not be taken as authoritative. After all, it was written several years before enactment of the APA, and by a Committee created by Roosevelt. But it is a relevant data point. It tells us something about what was in the atmosphere.

Third: In the 1940s—and before the enactment of the APA—the Supreme Court deferred to agency interpretations of law, sometimes in opinions that sounded a fair bit like Chevron. In Gray v. Powell, decided in 1941, the Court wrote that Congress had “delegate[d] th[e] function [of interpreting the statutory term] to those whose experience in a particular field gave promise of a better informed, more equitable” judgment, and that “this delegation will be respected and the administrative conclusion left untouched.” In National Labor Relations Board v. Hearst Publications, Inc., decided in 1944, the Court explained that the agency’s “[e]veryday experience in the administration of the statute gives it familiarity” with the underlying problem, and concluded that the agency’s interpretation of the statutory text “is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” Several other decisions spoke in the same terms, emphasizing that so long as the agency’s interpretation of law was reasonable, the Court would respect it.[3]

Fourth: Nothing in the legislative history of the APA repudiates these decisions. I repeat: Nothing. One more time: Nothing. (In a whisper, a shout: Not a word. Nothing.) That’s stunning. I confess that it astonished me.

Consider the Senate Judiciary Committee print, which blandly announces, “[a] restatement of the scope of review . . . is obviously necessary lest the proposed statute be taken as limiting or unduly expanding judicial review.” It adds that the goal of the section is “merely to restate the several categories of questions of law subject to judicial review.” Let’s focus on the words “merely to restate,” written again the background set by Gray, Hearst, and other rulings. The 1945 letter of the Attorney General, sent to both the Senate and the House and written shortly before enactment of the APA, had this to say about section 706: “This declares the existing law concerning the scope of judicial review.” Perhaps the Attorney General’s view was self-serving, but it is consistent with the general thrust of what was being said at the time.

If you read the materials, you will search in vain for any indication that courts must make independent decisions on questions of law, or for a suggestion that with respect to judicial review of agency judgments, section 706 is solving some kind of problem. Here we have a dog that just didn’t bark in the night.

It is true that a sentence in the House and Senate reports states that “questions of law are for courts rather than agencies to decide in the last analysis.” But who disagrees with that? And how much, really, does that tell us? The sentence is thin and cryptic, especially if we consider the words “in the last analysis.” If we give weight to committee reports, the declaration that “questions of law are for courts . . . in the last analysis” is entirely compatible with the recognition—as in Chevron itself—that it is for courts, rather than agencies, to decide when statutes are ambiguous.

Fifth: With respect to judicial review of agency determinations of fact, it is clear that section 706 was understood to repudiate previous practice. That is all over the legislative history, which is entirely clear on the point. By contrast, with respect to judicial review of agency interpretations of law, the silence of the history is deafening. We can learn a lot by noting the difference between (1) the clarity that the APA was heightening judicial review of agency factfinding under the substantial evidence test and (2) the absence of the slightest suggestion that the APA was doing something new with respect to judicial review of agency determinations of law. Professor Kenneth Culp Davis, writing in 1951, explicitly and pointedly declared that “the doctrine of Gray v. Powell has survived the APA.”[4]

Sixth: There is another non-barking dog, and it is important—in my view, exceedingly important, even for those who believe that legislative history is not relevant. In the aftermath of the enactment of the APA, the Supreme Court did not take section 706 as a signal that Gray and Hearst had been repudiated, or as forbidding judges from deferring to agency interpretations of law. In fact not one member of the Court ever did so! That is a revealing fact, suggestive of the original public meaning of the section, especially when taken together with the fact that the APA was clearly understood as a signal (or, better, a mandate) of reform in other areas.

In the late 1940s and 1950s, the Court never signaled that Gray or Hearst had been questioned, or that with respect to agency interpretations of law, section 706 expressed a “mood” or laid down new clarity. From 1946 to 1960, the Court never indicated that section 706 rejected the idea that courts might defer to agency interpretations of law. On the contrary, and tellingly, several decisions explicitly embraced that idea. In 1946—almost exactly six months after the enactment of the APA—the Court said in Unemployment Compensation Commission v. Aragon:

Here, as in [National Labor Relations Board] v. Hearst Publications, Inc., the question presented “is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially.” To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings. The “reviewing court’s function is limited.” All that is needed to support the Commission’s interpretation is that it has “warrant in the record” and a “reasonable basis in law.”

That sounds a lot like Chevron!

A year later, the Court said the same thing, emphasizing that even if an agency’s judgment “[was] considered more legal than factual in nature, the reviewing court’s function is exhausted when it becomes evident that the Deputy Commissioner’s choice has substantial roots in the evidence and is not forbidden by the law.”[5]

Nor was there the slightest movement, in the several years after the enactment of section 706, toward the view that courts should not defer to agency interpretations of law. Of course, agencies often lost during this period, but they lost because of what the Court took to be the statute’s meaning (think: Chevron Step One), not because of a sea change or reform supposedly introduced by section 706. (Again, no justice even hinted that there had been any such reform.) Consider an explicit statement in Mitchell v. Budd, decided in 1956, where the Court upheld an agency’s interpretation, writing (emphasis added):

No definition of “area of production” could produce complete equality, for the variables are too numerous. The Administrator fulfills his role when he makes a reasoned definition. On no phase of this problem can we say that the Administrator proceeded capriciously or by the use of inadmissible standards. Experts might disagree over the desirability of one formula rather than another. It is enough for us that the expert stayed within the allowable limits. We think he did here and that the definition of “area of production” … is a valid one.

Again, that sounds a lot like Chevron.

It is true that in several dissenting opinions, members of the Court accused the majority of abandoning Gray. But even there, what is noteworthy is that neither the majority nor the dissent invoked section 706 of the APA as a requirement of independent judicial judgment with respect to questions of law.

In the decade after the APA’s enactment, the words “decide all relevant questions of law” were used only four times in Supreme Court opinions, and in none of them did the Court suggest that those words prohibited deference to agency interpretations. If the original public meaning of section 706 was that courts may not defer to such interpretations, wouldn’t at least one justice, at some point in the decade after its enactment, point that out? If the original public meaning were as some people now understand it, would we not see a significant amount of evidence that people so understood it then?

In short: Many people think that Chevron is inconsistent with the original public meaning of the APA. But an investigation of the context makes it exceedingly difficult to defend that view.

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School.

[1] The final version is Cass R. Sunstein, Chevron As Law, 107 Geo. L.J. 1613 (2019). I draw here on some parts of that very long article.


[3] See, e.g., Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 477–78 (1947) (upholding as reasonable agency’s legal inference despite existence of potentially “more reasonable” inferences); Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 153–54 (1946) (upholding the Commission’s interpretation as reasonable because it was not “irrational or without support in the record”); Billings v. Truesdell, 321 U.S. 542, 552–53 (1944) (upholding as reasonable Army’s interpretation of Selective raining and Service Act); Dobson v. Comm’r, 320 U.S. 489, 502 (1943) (upholding as reasonable Tax Court’s decision to divide a single transaction into several steps).

[4] One commentator, John Dickinson, did say that section 706 called for independent judicial review of legal determinations. John Dickinson, Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A.B.A. J. 434, 516–17 (1947).  Notably, however, Dickinson does not muster any contextual evidence on behalf of his submission—a sharp contrast with what he is able to do for questions of fact. See id. at 518. I have been unable to find even one statement, in any of the key places in the legislative history, along Dickinson’s lines. As far as I am aware, Dickinson was the only prominent contemporaneous voice on behalf of the specific view that section 706 had changed the law with respect to judicial review of agency judgments of law. By contrast, Louis L. Jaffe was supportive of Gray v. Powell and offered no indication that the APA had repudiated it. See LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 575–76 (Abridged Student ed., 1965).

[5] Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 478–79 (1947).

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